Court of Appeal endorses Mubarak test for Hadkinson applications

Husband’s appeal dismissed for ‘abject failure to abide by the principles’ of court’s procedural rules

The Court of Appeal, hearing an appeal against a Hadkinson Order has endorsed the judgment in Mubarak v Mubarak [2004] EWHC 1158 (Fam).

Lord Justice Ryder, dismissing the husband's appeal in Assoun v Assoun[No 1] [2017] EWCA Civ 21, emphasised that a Hadkinson Order (i) is draconian; (ii) is not and should not be commonplace; and (iii) is a case management order of last resort in substantive proceedings where a litigant is in wilful contempt rather than a species of penalty or a remedy in committal proceedings.

In November 2015 HHJ Brasse granted had granted a without notice application made on behalf of the wife for a Hadkinson Order restricting the husband from bringing his own application to vary down or discharge a periodical payments order. The wife relied on the husband's failure to pay significant sums to the wife in accordance with a periodical payments order made on 22 November 2013. The husband conceded that he was in breach of the 2013 order.

The husband's case was that the Hadkinson Order was procedurally unfair and was wrong in law as it was disproportionate to make such an order where the husband's case was that he did not have sufficient resources to discharge his obligations under the original court order.

Permission to appeal was granted on the basis that the husband had no formal notice of the Hadkinson application or the basis upon which it was brought so that he might effectively respond to the same. The court imposed conditions that the husband provide full and frank disclosure and pay bonds/security for the appeal.

The judge endorsed his own earlier High Court decision in Mubarak v Mubarak [2004] where he set out the following test:

(a) Is the husband in contempt?

(b) Is there an impediment to the course of justice?

(c) Is there any other effective means of securing compliance with the court's orders?

(d) Should the court exercise its discretion to impose conditions having regard to the question:

(e) Is the contempt wilful (ie is it contumacious and continuing)?

(f) If so, what conditions would be appropriate?

As to point (e) Ryder LJ cited with approval the judgment of Sir Mark Potter P in Laing v Laing [2007] 2 FLR 199 at [24 - 25] that the threshold requirement is that the contempt should be wilful in the sense of a voluntary, deliberate, knowing (and continuing) breach, by a person well able to comply with the order if he or she chose to do so. The "mere fact that the husband may have a legitimate argument in support of his application for a reduction in maintenance based on the reduction in his own income, does not serve to legitimate his wilful failure to make the payments due under the current order given his ample means to pay out of current resources."

The judgment sets out that the appropriate test to apply is the balance of probabilities.

Ryder J found that, given the husband's abject failure to abide by the principles upon which the court's procedural rules are founded and his actual knowledge of the risks he took, there were insufficient grounds to establish a procedural irregularity in the process that led to the Hadkinson Order. Ryder LJ was reassured by the husband's failure to meet the disclosure requirements made in the order granting permission to appeal. The judge concluded by stating that the order of HHJ Brasse was the only order remaining that might secure compliance with the original 2013 order and was accordingly the least restrictive and hence most proportionate action.

In Assoun v Assoun [No 2] [2017] EWCA Civ 179the Court of Appeal found that there was no basis upon which the husband could seek to conduct a further analysis of the application of the Hadkinson principles by HHJ Brasse.

For Assoun [No 1], prefaced by a case summary by Josh Viney of 1 Hare Court (from which this item is derived), click here. For Assoun [No 2],click here.